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Revisiting Marsh v. Chambers

Marsh v.Chambers is oft referenced. Here is a look at some aspects of the case.

by Jim Allison.

Part I

Background

In 1983, in Marsh v. Chambers, the Court agreed to hear a case dealing with public prayer in the non-school context. The facts in the Marsh case were not complicated. Ernest Chambers, a taxpayer and member of the Nebraska legislature, brought an action against the state treasurer, Frank Marsh, challenging the constitutionality of the legislature's practice of opening each legislative session with a prayer given by a chaplain hired by a majority of the legislature and paid with state funds. The chaplain of the legislature was Robert E. Palmer, a Presbyterian minister, who was hired in 1965 and had been employed continuously by the legislature from that time to the time of the filing of the action. The Rev. Mr. Palmer was paid $319.75 per month for each month the legislature was in session, and at the end of each session, his prayers were collected in book form and published at public expense for distribution to members of the legislature and the general public. Palmer testified that he sought to offer essentially nonsectarian prayers. In fact, after an objection was raised by a Jewish legislator to the Christian content of Palmer's prayers, he endeavored to remove references to Christ and Christian doctrine. Ultimately, based on these facts, the question facing the Court was whether the Nebraska legislatures practice of opening each legislative day with a prayer by a chaplain paid by the state violated the Establishment Clause of the First Amendment.

In Marsh, the Court held, by a 6-3 margin, that the Nebraska legislature was permitted, as a constitutional matter, to hire a chaplain and to open each legislative day with a prayer. Justices Byron White, Harry Blackmun, Lewis Powell, William Rehnquist, and Sandra O'Connor joined in the majority opinion, which was written by Chief Justice Warren Burger. None of these justices felt it necessary to file separate concurring opinions, so it may be assumed that they were essentially in agreement with the content of the opinion drafted by the chief justice. There were, however, two dissenting opinions filed; Justice William Brennan filed a lengthy, substantive dissent, in which Justice Thurgood Marshall joined, and Justice John Paul Stevens filed a terse dissent.

The Courts

The District Court

The District Court held that the Establishment Clause was not breached by the prayer but was violated by paying the chaplain from public funds, and accordingly enjoined the use of such funds to pay the chaplain. The Court of Appeals held that the whole chaplaincy practice violated the Establishment Clause, and accordingly prohibited the State from engaging in any aspect of the practice.

Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U.S.C. 1983 , seeking to enjoin enforcement of the practice. After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. 504 F. Supp. 585 (Neb. 1980) . It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers. Cross-appeals were taken.

The Court of Appeals

The Court of Appeals for the Eighth Circuit rejected arguments that the case should be dismissed on Tenth Amendment, legislative immunity, standing, or federalism grounds. On the merits of the chaplaincy issue, the court refused to treat respondent's challenges as separable issues as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because "[p]arsing out [the] [463 U.S. 783, 786] elements" would lead to "an incongruous result." 675 F.2d 228, 233 (1982).

Applying the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612 -613 (1971), as set out in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973), the court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. 675 F.2d, at 234-235. Accordingly, the Court of Appeals modified the District Court's injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice.

The U S Supreme Court

The question presented is whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.

Answer

We granted certiorari limited to the challenge to the practice of opening sessions with prayers by a state-employed clergyman, 459 U.S. 966 (1982), and we reverse.

A person can find Marsh v. Chambers cited in a number of cases. It played a very important role in some, especially Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989} The only problem is that there are problems with the ruling in Marsh v. Chambers. Perhaps harshly, perhaps not, it could be viewed as a example showing just how far a court will go to avoid during the right thing. The right thing in that case was to rule something that was unconstitutional exactly that, unconstitutional.

When one combines the following with the dissenting opinions in Marsh v. Chambers, one has a very compelling argument in favor of revisiting Marsh v. Chambers.

According to the Annals of Congress, the historical record in this matter is as follows:

April 7, 1789, the Senate assembled. "Among the business of that day was a committee was formed to take under consideration the manner of electing Chaplains."

April 9, 1789, It was reported in the House that the Senate had formed said committee and that the Senate wished the House to create a similar committee to confer with their committee.

From the Journal of the House of Representatives of the United States, 1789-1793 Thursday, April 9, 1789:

The Speaker laid before the House a letter from Oliver Elsworth Esquire, a Member of the Senate, stating the appointment of a committee of that House to confer with a committee to be appointed on the part of this House, in preparing a system of rules to govern the two Houses in cases of conference, and to regulate the appointment of Chaplains; which was read.

On motion,

Ordered, That a committee of five be now appointed, for the purposes expressed in the communication from the Member of the Senate.

April 15, 1789, The Senate reported, "That two Chaplains of different denominations be appointed to Congress, for the present session, the Senate to appoint one, and give notice thereof to the House of Representatives, who shall thereupon appoint the other,, which Chaplains shall commence their services in the Houses that appoint them, but shall interchange weekly. Which was also accepted."

April 17, 1789, the House echoed the Senate report, "That two Chaplains, of different denominations, be appointed to Congress for the present session; the Senate to appoint one, and give notice thereof to the House of Representatives, who shall thereupon appoint the other -- which Chaplains shall commence their services in the Houses that appoint them, but shall interchange weekly."

April 25, 1789, the Chaplain was elected and appointed by the Senate.

May 1, 1789, the Chaplain was elected and appointed by the House.

April 30, 1789, the Chaplain actually began official duties (hence were working that job) in the Senate.

May 6, 1789, the Chaplain actually began official duties (hence was working that job) in the House.

September 12, 1789, the bill entitled, "An Act for allowing Compensation to the Members of the Senate and House of Representatives of the United States, and to the Officers of both Houses," was passed by Congress.

September 14, 1789, the bill entitled, "An Act for allowing Compensation to the Members of the Senate and House of Representatives of the United States, and to the Officers of both Houses," was Signed by the Speaker of the House and the Vice-President.

September 22, 1789, said compensation bill was signed into law by the President.

September 24, 1789, the amendments to the constitution were passed by Congress.

September 28, 1789, the amendments to the constitution were presented to the several States for rejection or ratification.

I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Congs. when they appointed Chaplains, to be paid from the Natl Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Constn. the maxim of the law, de minimis non curat.

There has been another deviation from the strict principle in the Executive Proclamations of fasts & festivals, so far, at least, as they have spoken the language of injunction, or have lost sight of the equality of all religious sects in the eye of the Constitution.

Whilst I was honored with the Executive Trust I found it necessary on more than one occasion to follow the example of predecessors. But I was always careful to make the Proclamations absolutely indiscriminate, and merely recommendatory; or rather mere designations of a day, on which all who thought proper might unite in consecrating it to religious purposes, according to their own faith & forms. In this sense, I presume you reserve to the Gov' a right to appoint particular days for religious worship throughout the State, without any penal sanction enforcing the worship.

I know not what may be the way of thinking on this subject in Louisiana. I should suppose the Catholic portion of the people, at least, as a small & even unpopular sect in the U.S., would rally, as they did in Virga when religious liberty was a Legislative topic, to its broadest principle.

Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded ags'. And in a Gov' of opinion, like outs, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Gov' will both exist in greater purity, the less they are mixed together.

It was the belief of all sects at one time that the establishment of Religion by law, was right & necessary; that the true religion ought to be established in exclusion of every other; and that the only question to be decided was which was the true religion. The example of Holland proved that a toleration of sects, dissenting from the established sect, was safe & even useful. The example of the Colonies, now States, which rejected religious establishments altogether, proved that all Sects might be safely & advantageously put on a footing of equal & entire freedom.... We are teaching the world the great truth that Gov' do better without Kings & Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Gov'.

Source:

Excerpt of letter to Edward Livingston from James Madison, July 10, 1822. Letters and Other writings of James Madison, in Four Volumes, Published by Order of Congress. Vol. III, J. B. Lippincott & Co. Philadelphia, (1865), pp 273-276. James Madison on Religious Liberty, Robert S.Alley, Prometheus Books, Buffalo, N.Y. (1985) pp 82-83)

Commentary

[From Marsh v. Chambers]

The tradition in many of the Colonies was, of course, linked to an established church, 5 but the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain. See, e. g., 1 J. Continental Cong. 26 (1774); 2 id., at 12 (1775); 5 id., at 530 (1776); 6 id., at 887 (1776); 27 id., at 683 (1784). See also 1 A. Stokes, Church and State in the United States 448-450 (1950). Although prayers were not offered during the Constitutional Convention, 6 the First Congress, as one of [463 U.S. 783, 788] its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee "to take under consideration the manner of electing Chaplains." S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.). On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, id., at 16; the House followed suit on May 1, 1789, H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.). A statute providing for the payment of these chaplains was enacted into law on September 22, 1789. 7 2 Annals of Cong. 2180; 4, 1 Stat. 71. 8

[ Footnote 8 ] It bears note that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause, see, e. g., Cobb, supra n. 5, at 495-497; Stokes, at 537-552, was one of those appointed to undertake this task by the House of Representatives, H. R. Jour., at 11-12; Stokes, at 541-549, and voted for the bill authorizing payment of the chaplains, 1 Annals of Cong. 891 (1789).

Now let's look at the historical record regarding the compensation bill that would eventually include the salary for those chaplains.

May 1, 1789, the appointment of a committee on compensation for President and members of Congress.

May 25, 1789 compensation for the Speaker of the House was added.

July 16, 1789 compensation for secretary of the Senate and clerk of the House was added. At this point two bills emerged from the original bill. One focusing on compensation for the President and Vice President, [HR-15] the other focusing on the members of Congress and the officers of Congress [HR-19]

July 22, 1789 compensation for the sergeant at arms, messengers, and doorkeepers of both houses were added to the [HR-19]

August 4, 1789 [HR-19] was read for the first time.

August 6, 1789, Chaplains were added to the list with a salary set at $500.00 a year.

August 10, 1789, the Salaries-Legislative Bill [HR-19} appeared.

August 28, 1789, the salary for chaplains was amended, dropping it from $500.00 to $400.00 per year and the words "during the session of Congress" were struck out.

August 31, 1789, The Senate disagreed to reconsider this above action in order to agree to the $500.00 originally set by the House. The House, in turn, refused to agree to the lower salary, and eventually the Senate did recede from their amendment lowering the salary.

It is important to note that there was bickering between the members of the House, and then between the two Houses of Congress throughout most of August and the early part of September over the amounts each groups should receive in salary. From Senators all the way down to assistant doorkeepers and common laborers. So it wasn't just Chaplains, but it is important to note that chaplains were mentioned only a couple of times throughout this entire process. They were not originally included at all, and then little notice was taken of them. The Senate did mention them in two of its three amendments [to lower the salary from $500.00 to $400.00 and to strike out the wording "During the session of Congress." The House refused to go along with both those two amendments and the Senate did eventually recede from both.]

With more compromising between the House and the Senate the bill was finally agreed to and passed on September 12, 1789.

Its final form read as follows:

SALARIES--LEGISLATIVE ACT [HR-19]

September, 22, 1789

AN ACT FOR ALLOWING COMPENSATION TO THE MEMBERS OF THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, AND TO THE OFFICERS OF BOTH HOUSES

[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, That at every Session of Congress, and at every meeting of the Senate in the recess of Congress prior to the fourth day March in the Year One thousand seven hundred and ninety five, each Senator shall be entitled to receive six dollars for every day he shall attend the Senate, and shall also be allowed at the commencement and end of every such Session and meeting, six dollars for every Twenty Miles of the estimated distance by the most usual road from his place of residence to the Seat of Congress, and in case any Member of the Senate shall be detained by sickness on his Journey to or from any such Session or meeting, or after his arrival shall be unable to attend the Senate, he shall be entitled to the same daily allowance; PROVIDED ALWAYS, that no Senator shall be allowed a sum exceeding the rate of six dollars a day from the end of one such Session or meeting to the time of his taking a Seat in another.

[2) AND BE IT FURTHER ENACTED, that at every Session of Congress, and at every meeting of the Senate in the recess of Congress, after the aforesaid fourth day of March in the year One thousand seven hundred and ninety five, each Senator shall be entitled to receive seven dollars for every day he shall attend the Senate, and shall also be allowed at the commencement and end of every such Session and meeting, seven dollars for every twenty miles of the estimated distance by the most usual road from his place of residence to the Seat of Congress, and in case any Member of the Senate shall be detained by sickness on his journey to or from any such Session or Meeting, or after his arrival shall be unable to attend the Senate, he shall be entitled to the same allowance of seven dollars a day; PROVIDED ALWAYS, that no Senator shall be allowed a sum exceeding the rate of seven dollars a day, from the end of one such Session or meeting to the time of his taking a Seat in another.

[3] AND BE IT FURTHER ENACTED that at every Session of Congress each Representative shall be entitled to receive six Dollars for every day he shall attend the House of Representatives, and shall also be allowed at the commencement and end of every session, six dollars for every twenty miles of the estimated distance, by the most usual road from his place of residence to the seat of Congress; and in case any Representative shall be detained by sickness on his journey to, or from the Session of Congress, or after his arrival shall be unable to attend the House of Representatives, he shall be entitled to the daily allowance aforesaid; and the Speaker of the House of Representatives to defray the incidental expences of his Office, shall be entitled to receive in addition to his compensation its a Representative, six Dollars for every day he shall attend the House. PROVIDED ALWAYS, that no Representative shall be allowed a sum exceeding the rate of six dollars a day from the end or one such Session or meeting, to the time of his taking a seat in another.

[4] AND BE IT FURTHER ENACTED that there shall be allowed to each Chaplain of Congress, at the rate of five hundred dollars per annum during the Session of Congress; to the Secretary of the Senate, and Clerk of the House of Representatives fifteen hundred dollars per annum each, to commence from the time of their respective appointments, and also further allowance of two dollars per day to each, during the Session of that branch for which he officiates: And the said Secretary and Clerk shall each be allowed, (when the President of the Senate or Speaker shall deem it necessary) to employ one principal Clerk, who shall be paid three dollars per day; and an engrossing Clerk who shall be paid two dollars per day during the Session, with the like compensation to such Clerk while he shall be necessarily employed in the recess.

[5] AND BE IT FURTHER ENACTED that the following compensation shall be allowed to the officers hereinafter mentioned, vizt. to the Serjeant at Arms during the Sessions, and while employed in the business of the House four dollars per day; the allowance of the present Serjeant at Arms to commence from the time of his appointment; to the door keeper of the Senate and House of Representatives; for their services In those Offices, three dollars per day, during the Session of the House to which he may belong, for his own services, and for the hire of necessary labourers; the allowance to the present door keeper of the Senate, to, commence from the day appointed for the meeting of Congress, and the allowance to the door keeper of the House of Representatives, to commence from this appointment: And to the Assistant door keeper to each House. two, dollars per day during the sessions.

[6] AND BE IT FURTHER ENACTED, that the Said compensation which shall be due to the members and Officers of the Senate, shall be certified by the President and that which shall be due to the Members and Officers of the House of Representatives, shall he certified by the Speaker, and the same shall be passed as Public Accounts, and paid out of' the public Treasury.

[7] AND BE IT FURTHER ENACTED, that this act Shall continue in force, until the fourth day of March, in the year One thousand seven hundred and ninety six, and no longer.

It has been claimed in some publications that Madison served on the committee in the House of Representatives of the First Congress, in 1789, that was formed to consider the manner of electing Chaplains. Therefore they claim that he voted for Chaplains and supported chaplains.

However, there is no information in the historical record that shows any of the discussions of that committee or who voted which way on any votes that might have been taken. What does exist are three items. (1) The historical record from Congress that shows that Madison did vote yea on the bill for compensation for a variety of members of the Congress, (2) excerpts from Madison's Detached Memoranda (written after 1817) in which he says that Chaplains are unconstitutional and gives his thinking why, and (3) a letter written by James Madison on July 10, 1822 to written to Edward Livingston in which he says, " I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Congs. when they appointed Chaplains, to be paid from the Natl Treasury. "

It has been claimed in some publications and by some that Madison supported chaplains because he voted to pay them in that same Congress. If the readers refer to the historical data above one will find what the actual historical record shows.

They will find that James Madison did, in fact, vote yea in regards to the bill "An Act for Allowing Compensation to the Members of the Senate and House of Representatives of the United States, and to the Officers of Both Houses."

It will also be noted above that Chaplains was not originally included, that the pay was reduced from what was originally accepted to a lesser amount and that chaplains was by no means an important portion of that bill receiving any major attention.

Madison and his fellow members of the House voted to pass the bill. It was almost mid September. They had been in session since the spring. They wanted to get finished up and get back to their homes, etc.

One could say that if he felt so strongly about the issue of Chaplains, he should have voted no. Perhaps so. However, the historical record shows it was a close vote and he may very well have been unwilling to risk the entire bill and requiring more time being spent before Congress could be adjourned over that one issue when he was fully in agreement with everything else in the bill. In short, Madison voted yea to the whole bill, not specifically or especially for chaplains. His vote cannot honestly be read as a yea for chaplains per se.

A motion was made and seconded, that the House do now proceed to re-consider the proceedings of yesterday, on the bill, entitled " An act for allowing compensation to the Members of the Senate and House of Representatives of the United States, and to the officers of both Houses, " so far as relates to the adherence of the House to their disagreement to the first amendment proposed by the Senate to said bill; which motion being objected to as not in order,

Mr. Speaker declared the motion to be in order; from which decision of the Chair, an appeal to the judgment of the House was made by two members; and, after debate, the question being put, "Is the said motion in order?"

It was resolved in the affirmative.

And then the question on the original motion being put, "that the House do now proceed to re-consider the proceedings of yesterday, on the bill, entitled 'An act for allowing compensation to the Members of the Senate and House of Representatives of the United States, 'and to the Officers of both Houses,' so far as relates to the adherence of the House to their disagreement to the first amendment proposed by the Senate to the said bill:"

There was an amendment to the bill which required a new vote which passed 28 in favor, 26 against and it was sent to the Senate which agreed which thus made the bill passed by Congress officially September 12, 1789

Others, in an effort to try and explain what they view as a discrepancy, speculate he must have changed his mind as he got older. It never seems to occur to them that there might have been no discrepancy at all, that he opposed Chaplains in 1789, after 1817 and 1822 as well.

"What is significant with respect to the date of its writing is that Madison's "Detached Memoranda' interprets the Constitution and the Bill of Rights and, unlike the Declaration of Independence, does not rest exclusively on the laws of nature or nature's God, on Madison's own "Memorial and Remonstrance, or on Jefferson's Virginia Statute for Religious Freedom, although all are reported, confirmed, and defended. It would seem, therefore that the "Detached Memoranda" would be the best source for determining the intended meaning of the "religion" clauses of the First Amendment (and the provision of article VI of the Constitution forbidding religious test for public office) at least by the primary draughtsman of both the Constitution and First Amendment.

The "Detached Memoranda" considers eight issues relating to religion that have reached the Supreme Court in one way or another since the Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation of churches; (3) grants of public land to churches; (4) tax exemption of religious entities; (5) the Deity in government documents; (6) congressional chaplaincies; (7) military chaplaincies; and (8) religious proclamations by the government."

Source:

"Madison's ‘Detached Memoranda": Then and Now." Leo Pfeffer. The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History , Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 286, 87.

The Decision

Commentary

This decision did not address the lower court's findings, amplified in Justice Brennan's dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Indeed, the majority opinion never invoked the Lemon Test at all. It may be that Burger felt that the historical argument was sufficient to reach his conclusion and so the test was unnecessary. Or perhaps he knew that using the test would have invalidated legislative chaplains and so specifically avoided it so that he could reach a conclusion more in harmony with tradition and popular opinion.

Because the lower court of appeals decision and two of the dissenting opinions found that the legislative chaplain failed all three parts of the Lemon Test, it is impossible that Burger was not aware of the argument. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application. As such, it is commonly seen as marking the beginning of the end of "strict separation" in interpreting the Establishment Clause in the court and the start of a more accomodationist approach.

. . . In the Walz case, Burger was not content with noting that tax exemption for churches was a common practice when the Constitution and the First Amendment were adopted; he tested the practice by the purpose, effect, and entanglement standard and found that it passed that test. In Marsh v. Chambers (1983), Burger did not subject legislative chaplaincies to the same test."

In that case, a rather courageous member of the Nebraska legislature brought suit challenging the constitutionality of a longstanding practice of starting each day the legislature met with a prayer recited by a salaried chaplain. At the time the suit was brought, the chaplain had occupied the office for sixteen years, and during most of this period, his prayers were Christological. This had come to an end in 1980, as indicated by footnote 14 of the majority opinion: "[Chaplain] Palmer characterizes his prayers as `non-sectarian,' Judeo Christian,' and with `elements of the American civil religion.' App. 75 and 87. (Deposition of Robert E. Palmer). Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator.

In the Marsh case, the district court held, and it was this holding that was appealed, that the state's appropriation of funds used to pay the chaplain's salary was unconstitutional, but that the practice itself was not. (In this respect, it was echoing Madison's position.) The court of appeals (echoing Jefferson's) went further and ruled that the practice was unconstitutional in its entirety and that it did not matter whether or not the chaplain received salary for his services. The Supreme Court decided that both lower courts were wrong and held that the practice itself was valid and so, too, was the chaplain's receipt of monetary compensation for his services. The Court, in an opinion by Burger, held immaterial the fact that the chaplain had served for sixteen years; he noted that for the twenty years between 1949 and 1969, one chaplain had served in the United States Senate.

In reaching their decisions, both lower courts had relied on the purpose, effect, and entanglement test, but, beyond mentioning this fact, the Supreme Court paid no further attention to it. Burger relied exclusively on history. Perhaps he did so because, as Brennan suggested in his dissenting opinion, the Nebraska law could not escape invalidation under any of the facets in the three-pronged test of constitutionality, especially the one relating to Burger's own contribution in Walz v. Tax Commission.

In his recitation of history, Burger could hardly pretend that the "Detached Memoranda" never existed. He disposed of it in a short footnote." To Brennan, the "Detached Memoranda" was more significant and relevant to the issue before the Court in the Marsh case than Burger considered it to be. In his dissenting opinion, he quoted, not as a footnote but in its body, the two paragraphs quoted above, answering in the negative the question whether the appointment of congressional chaplains is consistent with the Constitution. Brennan also suggested that "Madison's later views [in the "Detached Memoranda"] may not have represented so much a change of mind as a change of role, from a member of Congress engaged in the hurley-burley of legislative activity to the detached observer engaged in unrepressed reflection. " The difficulty with this rationalization is that, what Madison voted for in the First Congress cannot be easily reconciled with what he had written five years earlier in the "Memorial and Remonstrance."

(Internal citations and footnotes have been removed, supplied upon request)

Source:

"Madison's ‘Detached Memoranda': Then and Now." Leo Pfeffer, The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History , Edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp. 298-99

The implications of ceremonial deism are far-reaching because courts frequently employ this amorphous concept as a springboard from which to hold that other challenged practices do not violate the Establishment Clause. After all, the argument typically goes, if practices such as the Pledge of Allegiance, to a nation "under God," legislative prayer, the invocation to God prior to court proceedings, and the Christmas holiday are permissible notwithstanding the Establishment Clause, then surely the practice at hand (be it a nativity scene, commencement invocation, or some other governmental practice)-which does not advance religion "any more than" these accepted practices-must also pass muster under the Establishment Clause:

Major Premise:These traditional practices obviously pass constitutional muster (otherwise we would not have tolerated them for so long).

Minor Premise:The practice at hand does not advance religion any more than those which pass constitutional muster.

Conclusion:The practice at hand must pass constitutional muster.

This syllogistic reasoning has been aptly named the "any more than" test. Its central flaw is that no court has ever squarely and faithfully probed the validity of the major premise under the Supreme Court's long-standing Establishment Clause jurisprudence.15

15. For instance, in Marsh v. Chambers, the legislative prayer case, the Supreme Court ignored the Court's traditional Establishment Clause jurisprudence as if it did not exist, opting instead for a syllogistic approach similar to the one described above. 463 U.S. 783, 791 (1983) ("legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations" (emphasis added) (citations omitted)); see also Rodney J. Blackman, Showing the Fly the Way Out of the Fly-Bottle: Making Sense of the First Amendment Religion Clauses, 42 U. Kan. L. Rev. 285, 335 n.144 (1994) (criticizing the weakness of an historical approach based on reasoning that "because 'this' already has been allowed, there is no reason not to allow 'that'"); Ira C. Lupu, Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 Conn. L. Rev. 739, 755 n.4 (1986) ("In the absence. of a baseline principle, 'more' and 'worse' are meaningless concepts of measure."); . Gregory Wallace, When Government Speaks Religiously, 21 Fla. St U. L. Rev. 1183, 1213-14 (1994) ("there is no substantive baseline that reflects constitutional values; rather, everything is relative to what government has traditionally done"); Yehudab Mirsky, Note, Civil Religion and the Establishment Clause, 95 Yale LJ. 1237, 1245 (1986) (under such test, "[t]he legitimate functions of government are defined ... simply by what government is already doing, without any reference to the substantive content and constitutional value of the activity in question").

As previously noted, the Court did recognize that there were a number of occasions when the practice of hiring a chaplain had been challenged. John Jay and John Rutledge opposed a motion to begin the first session of the Continental Congress with prayer.12 Objections to prayer were apparently raised successfully during the ratification debates in Pennsylvania.13 James Madison, who initially favored a form of chaplaincy legislation, wrote subsequently of his opposition to aspects of the legislative chaplaincy as it had developed by 1820.14 A proposal offered by Benjamin Franklin during the Constitutional Convention relative to the hiring of a chaplain had failed.15 In the 1850s, a number of senators engaged in an unsuccessful effort to eliminate paid chaplains on the ground that their service violated the Establishment Clause.16 While a few of these efforts to have the legislative chaplaincy declared unconstitutional on Establishment Clause or related grounds were successful, the chief justice stressed that overwhelming historical support existed for the proposition that legislative chaplaincies were constitutionally acceptable. Indeed, he concluded that evidence of opposition merely demonstrated "that the subject was considered carefully and the action not taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society."17

The Uncertain Constitutionality of Prayers That Open School Board Meetings

by Chad Ford

IS IT A VIOLATION of the United States Constitution for a North Carolina school board to open its meetings with a prayer?

There is no definitive answer to this question because it lands directly between two competing lines of constitutional thought. One line, springing from the 1971 United States Supreme Court decision in Lemon v. Kurtzman,1 has sustained virtually every challenge to government-sponsored religious expressions in public schools, including prayer. The other line, springing from the Court's 1983 decision in Marsh v. Chambers , 2 has held that religious prayers authorized by a legislative body at the opening of its sessions do not violate the Constitution.

Under Lemon, a government-sponsored activity will not violate the Establishment Clause if (1) it has a secular purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create an excessive entanglement of the government with religion.8 If the challenged practice fails any part of the Lemon test, it violates the Establishment Clause.9 The first prong of the Lemon test focuses on the intentions of the government. Namely, did "the government intend to convey a message of endorsement or disapproval of religion."10 The second prong asks whether, "irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval."11 The last prong looks to "the character and purpose of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority."12 The key to the third prong is "excessive entanglement." Not every interaction between a government and religious authority would be a violation of the Establishment Clause. The court has "always tolerated some level of involvement between the two."13

Marsh v. Chambers

The only clear departure from the Lemon test since its inception came in 1983, in Marsh v. Chambers, in which the Supreme Court held that a state legislature's practice of opening each day's session with a prayer delivered by a state-paid chaplain did not violate the Establishment Clause of the First Amendment. 14 The Court began its analysis by comparing Nebraska's practice with the "unique history" of the United States Congress, noting that the practice of opening sessions of "legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of the country." The court reasoned that:

. . . in light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being."15

To bolster that argument, the Court noted that the drafters of the Establishment Clause expressed their support for legislative prayer by voting to employ a legislative chaplain for the first Congress. Just three days before the first Congress adopted the language of the Establishment Clause, it authorized the appointment of paid chaplains to offer invocations at the beginning of each congressional session.16 [ This isn't quite true. See Chief Justice Burger, I Would Like You To Meet Mr. Madison , and Discrepancies ]

Is this a clear indication that the men who authored the First Amendment did not view paid legislative chaplains offering invocations in Congress as a violation of the Establishment Clause?17 Or is it evidence that the enactment of the First Amendment and the Bill of Rights was forced upon Congress by the states as a condition for their ratification of the original Constitution?18 The Court found it untenable that the first Congress "intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable."19

The result in Marsh departs from the Court's earlier Establishment Clause jurisprudence in several critical ways.20 First, the Court began the analysis of the case with the caveat that "standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees."21 It appears, from the rest of the opinion, that the Court goes on to ignore its own admonition by deciding the case because of well-established historical patterns. Nevertheless the Court's result may not be as inconsistent with the aforementioned proposition as it initially seems. Perhaps the Court viewed the facts in this case through the lens of a centuries-old empirical observation—despite two hundred years of beginning

3

legislative sessions with sectarian prayers, legislative invocations in both Congress and the Nebraska legislature have not led to an establishment of a state religion.22 Second, Marsh is the first and only Establishment Clause case since 1971 to not apply the three-pronged Lemon test. Justice William Brennan notes this in his dissent in an attempt to limit the holding of Marsh. "That it fails to so [apply the Lemon test] is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer."23

Brennan, in his dissent, protested the departure from traditional Establishment Clause analysis and went on to apply the Lemon test to the facts in Marsh. He quickly concluded that "if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause."24 He found that the legislative prayer had a preeminently religious purpose, had a religious effect, and led to excessive "entanglement" between the state and religion.25 One of the essential factors in Brennan's analysis was the fact that the Nebraska legislature had chosen the same Presbyterian minister as chaplain for sixteen years and that it was he who often offered the nonsectarian prayers before the legislature.26 Because of the fact-specific historical analysis employed by the Court to uphold legislative invocations, many commentators have argued that all Marsh holds is that "legislative prayer," delivered by an established chaplain system, with a long and unbroken historical legacy, is not per se unconstitutional.27

Despite the seemingly uncertain ground upon which the Marsh exemption was created, the holding in Marsh was consistent with case law in lower courts upholding legislative prayers.28

In Marsh the Supreme Court did place some limits on the scope and selection of legislative invocations. First, a prayer falls outside the exception when "the

Joseph Story v. James Madison from the grave

It can be said that the majority court in Marsh as well as the modern ultra conservatives, some moderate conservatives, religious right, accommodationists and non-preferentialist speak the Joseph Story position while the dissenting opinions in Marsh as well as some moderates and moderate conservatives, liberals and strict separationists of all walks speak the Madison position.

While all of the opinions in Marsh are deficient to some degree as a matter of historical analysis, it is clear in a policy sense that the differences between the majority and the dissenters is but a revival of the old debate between the Storyites and the Madisonians. As has been shown, the framers did not resolve this dispute; politics and perhaps even prudence dictated that they leave its resolution to posterity. These views form the limits within which legitimate decision making may occur. Therefore, it should be clear that, while I object to the use of history in the reasoning contained in all of the opinions, I do not object, on the interpretivist grounds, to either the resolution proffered by the majority or that preferred by the dissenters.

The Court in Marsh adheres effectively to the Story view, a view that permits the hiring of a Christian chaplain so long as that chaplain does not prefer one Christian sect over another. The Court's decision is, there fore, legitimate in terms of originalist analysis. However, it must be conceded that Marsh makes for a strange fit with the Courts prior decisions. For the most part, the Courts decisions have been consistent with the Madisonian and not the Story view. Therefore, the Court's ambivalence, in rejecting the Madisonian view and favoring the Story view in Marsh, sends a confusing message to the bar; it is unclear what view is or ought to be controlling in a given case.

Nevertheless, there is a way of placing the Marsh decision in a larger picture that will be helpful in offering a greater sense of certainty about which view, Madisonian or Storyite, ought to apply in a subsequent case. In Marsh, the majority doubtless was concerned about the ramifications of rejecting a practice that had been ongoing for nearly two hundred years at both federal and state levels. Upending such a practice, particularly in the religious context, would create a significant public stir and might jeopardize the Court's authority in other related areas. Had the majority decided against the chaplaincy practice, they might have played into the hands of those who favor limiting the Court's jurisdiction or amending the Constitution. These opponents of the Court's decision in Engel and other cases no doubt would have once again raised a hue and cry against the Court. Mindful of how close those opponents had come previously in their efforts to meddle with the Courts jurisdiction, 69 the majority in Marsh well may have believed that they were protecting the prerogative of the Court, without yielding entirely to the Story view. Such a position is borne out, in some measure, in the Count subsequent decision in the Jaffree case, in which the Court once again effectively opted for the Madisonian rather than the Story view.

The Court may have been signaling that practices with definite historical roots will be viewed favorably, even though they are consistent with the Story view, which is otherwise largely in disrepute in terms of the Court's contemporary case law. In other words, while the Court normally will apply tests that are essentially consistent with the Madisonian view when dealing with an issue that lacks significant historical roots, it will nevertheless permit practices with historical roots in the Story era to persist even though they are inconsistent with the Madisonian view. Additionally, the Court may be evidencing a trend toward deferring to state legislative determinations in cases like Marsh.

I sympathize with the Court as a prudential matter. I believe I understand what Chief Justice Burger is implying when he notes that "the unbroken practice for two centuries in the national Congress and for more than a century in Nebraska and in many other states gives abundant assurance that there is no real threat while this Court sits.'"70 The chief justice seems to be implying that the more than two hundred years of history behind the chaplaincy practice not only support its perpetuation as a matter of constitutional law, but also indicate that the feats raised by the dissenters to the practices have never materialized despite the long history of the practice. If in the future, however, offensive consequences do begin to occur, the Court might intervene under its more commonly utilized standards, which are in large measure based on a reasoning similar to that espoused by Madison. The cost of intervention in Marsh, on the ground that the chaplaincy practice violated the nonpreference and prohibition of prescribed modes-of-worship principles first articulated by Madison, might have been high. Such costs should not be incurred in cases where the objectionable practice has a long and relatively tolerant history. Thus, it seems that, without repudiating the Madisonian view, the Court in Marsh upheld the chaplaincy practice on prudential grounds. Such a decision was acceptable from an originalist perspective, because it was in keeping with the Story view, and it can be melded into existing precedent, which largely recognizes that the Madisonian view ought to prevail.

69. See Chapter 12, infra, for a discussion as to how close Senator Helms recently came to obtaining requisite support for his legislative proposal that would have limited the jurisdiction of the Supreme Court to hear a number of constitutional issues, including prayer issues arising in the public schools.
70. Id. at 3338.

Part III

Additional Information

What the European Professors Had to Say About Our Application of James Madison's Theory

For example, two professors came to me after my talk, in which I discussed James Madison's devotion to the concept of separation of church and state. They thought that Madison's theory was all well and good, but they believed that it was obsolete; the United States, they claimed, had long ago decided to adopt an established church. Our actions, they said, speak louder than our words.

As I shook my head vigorously, thinking we had a language barrier between us, they pulled out their prime proof: legislative chaplains — that is, chaplains who recite a prayer before the opening of a state or federal legislative. And not just any legislative chaplains, they pointed out, but a preponderance, a dominance of Protestant legislative chaplains since the beginning of the country. Didn't that prove, they said, that this country has an established church, no matter how we try to argue otherwise? Isn't this a "Christian" country? Moreover, they continued, as I opened my mouth to attempt to finesse the point, the United States Supreme Court expressly upheld legislative chaplains in a "very famous case," Marsh v. Chambers.

Marsh v. Chambers?, I thought to myself. That is such a small case in the constellation of our religion jurisprudence. At least from a stateside perspective. Sure, the Court held that the presence of legislative chaplains does not violate the Establishment Clause, but the Court emphasized that is because having such chaplains is a long-held practice, a type of "ceremonial deism." In any case, having such chaplains really does not make much difference; the legislators aren't there to hear the prayer. And, if they are, they aren't paying attention. Even if they were, it would never be coercive because they are adults. Chaplains were like the "In God We Trust" motto on the coins, containing a religious element, but surely not "real" establishment.

Their point was hard to deny: we had opened the door to establishing a church, the Protestant church, in this country. This seemingly inconsequential case, which is reasoned away by the Supreme Court and most religion theorists, stands as an example to the world of the establishment of religion. It brings a tarnish, obviously, to the claims by the United States that it is the home of diversity and the haven for pluralism.